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Hailey Tables Marijuana Ordinances


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The Hailey City Council Monday night decided to wait for a state attorney general's opinion on what the city should do with three marijuana and hemp initiatives passed by city voters on November 6, each one of which appear to violate state and federal law. The three ordinances call on city leaders to ignore existing laws prohibiting any use of marijuana or hemp and to advocate for adoption of such laws by other cities and counties and the State of Idaho, even though such advocacy will cost Councilwoman Carol Brown her seat in government and tell both police and prosecutors how to do their jobs. The initiatives include the Hailey Medical Marijuana Act, the Hailey Industrial Hemp Act and the Hailey Lowest Police Priority Act, passed on November 6th by majorities. The medical marijuana act passed with a vote of 687 to 581, the hemp act by a 683/565 split, though telling Hailey Police Chief Jeff Gunter what to do was much more close, passing by a 637 to 601 vote.

Each act provides for the creation of a seven-member Community Oversight Committee, one nominated by each council member and mayor, one by the Chief of Police and a member of the Idaho Liberty Lobby.

City attorney Ned Williamson explains the issues within the marijuana ordinances. Hailey city attorney Ned Williamson, a former Blaine County Prosecutor, led city leaders through a slide show noting the new laws:

• Create a special class of citizens –the Liberty Lobby- who would sit on a community oversight committee responsible for implementing the new laws, a notion anathema to an equal-rights democracy;
• Conflict with several Idaho laws governing the release of confidential police reports;
• Call for disciplining of police officers outside their employee- and grievance contracts with the city;
• Limits the ability of federal agencies to deputize police officers;
• Constrain the city prosecutor's ability to prosecute,
• Raise First Amendment issues of free speech and political expression among city officers in requiring them to advocate for the legalization of marijuana; and
• Will eliminate city from participation in any federal grants and possibly endanger federal highway funding in city limits.

Not to mention that both federal and state law prohibit possession of even small amounts of marijuana or hemp and trigger felony charges for large amounts of either one.

After the slide show, Williamson outlined city leaders' options in the matter.
"[City officers] could leave the ordinances as-is," Williamson began. "If you would do that, you'd need to start looking at people to appoint on the oversight committee. The acts, as-written, say upon enactment, you need to start appointing individuals. This is the first regular meeting and we need to look at our options and how to proceed." Those options include the first, as above, going along with the voter-approved initiatives on their face value. Idaho law allows city leaders to amend the new laws, to repeal them outright or to litigate them to test their legality in open court, Williamson explained. "If you guys pass a law that is illegal, it's my duty to tell you I think it's wrong," Williamson advised. "And then we allow the courts to make a determination. "It's in Civics 101 that I learned that there are three branches of government and one branch is the judiciary. The judiciary can review ordinances for legality. They do it all the time. This is an instance, I think, where we need to follow that route. The Idaho Supreme Court has spoken, the local district court has spoken, a federal court judge has spoken on the legality of these ordinances. They've all stated there are issues here. I think it would be foolish to assert there are no issues with the general laws of the State of Idaho. "Hailey has a right to pass laws. But those laws have to be consistent with general law, have to be constitutional and in this instance, I think we do have some issues."

Despite Council President Rick Davis having opened the discussion asserting no decisions would be made, Williamson urged councilors to wait instead of acting immediately as the new laws instruct. "Ultimately I think that's how we ought to proceed. I don't make the recommendation lightly because I do know it will entail expenditure of taxpayers' moneys. But the laws as proposed create significant issues."

Williamson then asked for questions. Councilman Don Keirn had a practical one. "When all of us took office -any mayor or council person- when we're sworn in, we take an oath to uphold the laws of the State of Idaho," Keirn observed. "Where does that put us in relation to these things?" "That goes directly to Article 12, Section 2 of the Idaho Constitution," Williamson replied. "The city has the right to make and enforce laws that are consistent with the general laws. My view is that we have to enforce only those laws that are consistent with general law and that's exactly what our oath says."

"So, in effect, we'd be violating our oath of office if we carried through on this thing," Keirn offered.

"My point is that we need to let a court decide the legality of this," Williamson answered. "That's what the courts are designed to do."

"My feeling is that Ned's probably right on," Council President and Mayor-Elect Rick Davis said. (Mayor Susan McBryant is on vacation.) "Repealing it would be against the will of those who voted in this last election that passed this. I’m not going to enforce a law that has potential fallacies in it that are against the state constitution because I agree with Don –we did take an oath. I don't like spending taxpayers' money when we could be buying more stop signs and sidewalk instead of litigating. I don't think we have a choice but to wait on the attorney general's office to make a determination and if they decide not to, we have to file a case for litigation."

"I'd just like to add, as the votes were counted, [Councilwoman] Carol had more votes than any of these initiatives," Councilwoman Martha Burke noted. "It seems to me that the community has said we want this woman to represent us, we want her to do her job that we've elected her to do. I don't know how to reconcile the fact that the Forest Service can't even let her be in the same room as we discuss our options."

Brown had explained before the issue began that her employment –with the Sawtooth National Forest- prohibits her from participating in any of the discussions of extra-legal issues of any kind and that she is very likely to be forced to resign from office if the city elects to enforce any ordinance contrary to federal law.

"Please don't ask me about this," Brown asked everyone in the full hearing room. "I'll just have to say I'm recused."

Brown then stood and left the room before Williamson began his presentation.

"I would think if she recuses herself, at some point this is enough," Burke continued. "But if the Forest Service doesn't view it that way, I want to do whatever we can to make sure that this woman who is outstanding in her position on this council, has the right to remain here. That's the thing that angers me pretty much more than anything else."

"Hear, hear," a member of the audience intoned.

"The advocacy part is where the Forest Service or the federal government comes in," Keirn noted.

"Frankly, I don't care about the marijuana issue, I care about what it's telling us to do and the position it's putting us in when I don't think the voters understood what was being requested of them," Burke said.

"I’m sure that it's an unintended consequence," Williamson opined.

Councilors act

"Whether it is or it isn't, we have to deal with it –we have no choice," Davis said. "I'd recommend as Council President that we continue this until we hear from the AG's office and then deal with it when we have all our information."

"I agree," Keirn added.

"Yep," Burke concurred.

"I think we need that decision from the AG," Williamson said. "So let's wait until we hear from them."

"Do you want it on the next agenda on December 10th?" Davis inquired. "Or do you want us just to table it until you say you've heard [from the attorney general] and re-post it?"

Williamson indicated it would be best to leave the date uncertain.

"I make a motion we table this discussion until we hear from the Idaho Attorney General's office and we re-post it for discussion following that notification."

Burke and Keirn agreed and that's what the city will do for now.

Source: SunValleyOnline
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